CRIME

1. The Nature of Crime

The meaning of crime
Crime – any act or omission of duty that results in harm to society and which is punishable by the state. Must be an act that breaks the law,
seen as harmful to community
Beyond reasonable doubt the standard of proof required in a criminal case for a person to be guilty-
The Crown is the state party who commences a criminal action in a court of law against the offender. NSW- commenced by the Director of
Public Prosecutions
Elements of a Crime
 To find someone guilty of a criminal act it is necessary to prove: mens rea, actus reus and causation.
 Mens Rea – the ‘guilty mind’, it refers to a person’s intention to commit crime. There are three main levels:
 1. Intention- a clear, malicious or wilful intention to commit the crime- highest and most difficult level of mens rea for the prosecution to
prove
 2. Recklessness- when the accused was aware that the action could lead to crime being committed- chose to take the course of action anyway
 3. Criminal negligence- this is when the accused fails to see the danger present in their actions leading to the death or injury of others
 Actus Reus – the ‘act element’, it refers to the physical performance of the criminal act. It must be proven that the person actually carried out
the act, not just thought about it.
Strict Liability Offences
 The element of actus reus will need to be shown in such offences
 Prosecution must prove the offender carried out the act- not required to show criminal intent
 E.g. speeding offences- police must show that the person breached laws not intended it
 Defence to strict liability possible if accused can prove it was a reasonable mistake
Causation
 Causation – the prosecution must prove that there is a causal link between the accused’s actions and the crime committed; that the act was
the substantial cause of the crime. Must have caused specific injury and easily established
Categories of Crime
 Categories affect the way an offence is investigated, prosecuted or punished- includes:
 1. Type of offence i.e. drug offences, economic offences
 2. Jurisdiction whether it is a NSW or Commonwealth offence
 3. Seriousness of offence summary or indictable offence
 4. Parties to crime who is involved and whether principal offender had any assistance
Offences Against the Sovereign
 These are offences in which the accused is targeting the state (government); protect state to promote stable government.
 Treason – activities, which undermine the government by passing on information to other governments etc.
 Sedition – The inciting of public unrest with the aim of bringing down the government; the act of encouraging hatred or contempt for the
government.
Offences against the person Economic offences
 Homicide – the unlawful killing of a person. The judge must determine that Crimes against property
there is a ‘causal relationship’ between the actions of the accused and the harm  Larceny (theft) – the removal of another person’s
caused to the victim. property without the consent of the owner, and with
 Murder – the deliberate killing of a person; there was a deliberate act designed the intention of permanently keeping them.
to cause serious harm during which death occurred; or there was a reckless  Breaking and Entering – When a person illegally
indifference to human life which resulted in death. enters a building in order to commit an offence.
 Manslaughter – killing of a person where the accused had not intended death-  Robbery – the taking of a person’s property directly
punishable by up to 25 years imprisonment. Three main types: from them or from their vicinity; theft accompanied
- Voluntary- killing where accused had intent- reckless about killing someone- by force or the threat of force.
are mitigating circumstances (considered by the court when determining White Collar Crime
guilt or innocence; do not justify offence but reduce charge i.e.  Tax Evasion- attempt to avoid paying full amount
- provocation- the offence was committed due to another party causing them to of tax by concealing or underestimating person or
lose control that may result in an illegal act such as murder due to rage, anger business’s income/assets
or resentment  Insider Trading – where a person with special
- Involuntary- occurred because accused was reckless or negligent- no intention knowledge of a company uses that knowledge to buy
to kill the person or sell shares.
- Constructive- killing of a person while accused was carrying out another  CASE: R v Rivkin (2003)
dangerous or unlawful act i.e. assaulting someone but death results - Guilty of insider trading- Rene Rivkin:
 Infanticide – the homicide of an infant who is under the age of 12 months, by entrepreneur, investor and stockbroker
their mother. - Told confidential info by company exec. Before
 Crimes Act 1900 (NSW)- court take into account state of mind of mother before purchasing shares in Qantas 2001- price of shares
issuing sentence- any issue such as depression- mitigating circumstance would rise once info was publicised
 Assault – Causing physical harm or threatening to cause physical harm to - Resulted in profit of $2662.94- convicted and
another person. The law makes no distinction between the threat and actual sentenced to 9mnths periodic week detention-
 CRIME
application of force stockbroker license banned
- Aggravated Assault – a special type of assault where there is the intention to  Embezzlement – when employees in a business
cause very serious harm, the use of a weapon, or the threat to contaminate steal by falsifying business accounts while they use
another person with a disease like AIDS. the business finances for personal gain
- Sexual Assault – the unlawful sexual contact by a person on another without
their permission. Max penalty: Up to 14 years
- Aggravated Sexual Assault – where there is a high degree of violence involved
in the sexual assault, or the victim has a serious intellectual/physical disability
Drug Offences Computer Offences
 Relate to acts involving prohibited or restricted drugs  Include crimes related to hacking and unauthorised
 Drug Misuse and Trafficking Act 1985 (NSW) outlines offences related to drugs access or modification of data
 Supply of prohibited drug- including offering or agreeing to supply whether or  Crimes Act 1900 (NSW)- modification or
not actual drug or money changed hands; drugs in possession for purpose of impairment of restricted data, impairment of
supply electronic communication or unauthorised access to
 Cultivation – The act of sowing, growing or harvesting a narcotic plant. You data with intent of committing offence
can be charged if you cultivate a ‘deal-able quantity’ or intend to sell some.  Some may be committed by employee of target
 Possession – to be caught with enough illegal drugs for personal use only company or by outsider hired
 Usage – intentional consumption of the drug by any means  Fraud: deceitful or dishonest conduct carried out
for personal gain
 Types of fraud: identity theft, internet phishing
(posing as legit website), requesting funds or
account details by email under fraudulent pretences,
technology fraud using ATM
Public Order Offences Driving Offences
 Acts that disturb the public order such as disturbance in public area Most commonly committed offences in NSW
 Listed in the Summary Offences Act 1988 (NSW) Included under Road Transport (Safety and Traffic
 Acts deemed as inappropriate by society Management) Act 1900 (NSW)
 Include: obscene indecent language in public, possessing a knife in public place, Police enforce and process offences through on-the-spot
obstructing traffic or ignoring police orders fines
 Damaging public buildings and facilities Regulated by the NSW Roads and Traffic Authority-
 Affray: threatening to use violence towards another that would cause person to demerit system
fear safety Exceeding speed limit
 Riot: 12 or more people using/threatening to use unlawful violence for common Driving without licence or ignoring road signs
purpose Driving above legal blood alcohol limit of 0.05

Preliminary Offences Regulatory Offences

 Attempt: offence where principal crime was attempted but failed for some reason  Going against regulation
despite intent- considered crime- can be charged, may carry lower penalty. If  Minor offences that aren’t always considered to be
someone aimed to shoot another and missed – can be found guilty of murder crimes e.g. jay walking
 Accused may have reason for conduct  Set by govt. department or agencies responsible for
 CASE: R v Whybrow (1951) area of law and policy that require frequent change
- Husband connected electricity to soap dish in family bath to electrocute wife-  E.g. watering garden despite water
did not work, only received shock destructions,Travelling on public transport without
- Court found guilty of attempted murder because of intention valid ticket
 Conspiracy: 2 or more people plot to commit crime together- act of planning and
prep. Of a crime constitutes conspiracy- difficult to prove without confession,
signed doc., phone tap
 If two sisters plan to kill a brother but do not commit the crime – sisters who
planned could be found guilty of conspiracy
Summary and Indictable Offences
o Summary offence- Less severe offences heard and sentenced by a magistrate in the Local Court not tried in front of a jury. E.g. driving
offences and offensive behaviour
o Penalties include bond or fine, jail sentences of up to 2 years
o Indictable offence – More severe offences heard and sentenced by a judge in a District Court or tried before a judge and jury; murder, sexual
assault, theft, etc.
Parties to a Crime
 Principal in the First Degree: They actually carried out the crime – perpetrator; key instigator; harsh penalty
 Principal in the Second Degree: Assist and encourage the principal offender to commit offence E.g. Guards the door, clears the path, drives
the getaway car.
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 Accessory Before the Fact: This is a person who helped to plan the crime. The planning can involve: the gathering of the opening and
closing times, floor plans and maps, and the names of the attendants.
 Accessory After the Fact: Helps after the act but is not present during the event or aware of the event until after. Lesser punishment
Factors Affecting Criminal Behaviour
Psychological Factors Social Factors
Many forms of mental illness affecting person’s behaviour may be Family situation or personal relationships influence criminal activity
reason for crime Social group- influence attitude and views of acceptable behaviour
Important during criminal process- accused’s state of mind is Environment individual is raised in e.g. abusive home, trauma = more
considered when sentencing prone to criminal activity
Relevant during sentencing and sentencing programs- drug The theory of differential association states that a person who is exposed to
rehabilitation programs focusing on psychological rehabilitation an environment where criminal behaviour is normal, is more likely to
become a criminal
Economic Factors Political Factors
Most substantial reason for committing of crimes in NSW Groups in society will challenge the authority of the government and
Disadvantaged background more likely to commit crime therefore the laws of that government. Sometimes this politically
1/3 of male and ½ of female offenders receive welfare or govt. motivated criminal activity is considered justifiable.
payment as source of income Public order offences may be connected to politically motivating factors
Poor education, lack of skills related to economic factors E.g. annual protests at G8 Summit/ protests at 2009 Copenhagen Climate
Offenders in this case may commit crime for economic benefit such Change Conference
as robbery, larceny, etc
Self- Interest Genetic Theories
Usually plays role as motivating factor in committing a crime It has been theorised that criminals are born, not made. It is possible that
Motivations of money or power may play a significant role in some people commit more crimes than others because of their genetic
committing the offence make-up. However, other factors are much more important
Crime is committed for own personal profit such as money gained
through embezzlement
Crime Prevention
Situational Crime Prevention Social Crime Prevention
 involves making it difficult for criminals to commit criminal acts  attempts to reduce the factors that are likely to cause a person to
either by increasing the risk of being caught, making crime more commit crime
difficult to perpetrate, or making the crime less rewarding. E.g. good  Education about laws, how they function and why acts are illegal
security system and locks prevent thievery, parents disallowing – prevention through early years
children to go to a party to prevent hazardous situation, tech. such as  Providing employment or income through govt. departments
surveillance cameras prevent looters. prevent crime such as robbery and theft – won’t feel the need to
 Planning & Architectural Design- influence of physical resort to crime
environments on crime i.e. adding bars or alarm system at home  Funding to put educational programs in schools to raise
 Focused (situational) approach- views offenders as actors who education levels of students
weigh up potential risks, costs and gains i.e. use colour tags attached  Youth programs run to teach dispute resolution skills and social
to clothing in shops that set off detectors at door skills to reduce number of potential offenders E.g. Police Youth
Leadership Program
2. The Criminal Investigation Process
Police Powers
 Responsibility for enforcing criminal laws and ensuring they are adhered to lies with the police- make enforceable legal decisions and
judgements
 Role of police is to investigate crimes, make arrests, interrogate suspects and gather evidence
 Challenge is to balance extent of powers required by police against the rights of ordinary citizens
 Main police powers include:
- Detain and question suspects
- Search property and seize evidence (search and seizure)
- Use reasonable force if necessary
- Use particular technologies to assist investigation i.e. phone taps, surveillance, DNA samples
- Arrest and interrogate samples
- Recommend whether bail should be granted
 May need to seek a warrant from court to use particular power to ensure power is used appropriately and is not abused
 Ability to cross-reference details of person of interest (criminal history, gun licence, mental illness, etc.) through COPS 1994 system
Role of Discretion;
 Police decide areas to patrol, which crimes to target and which reports to investigate
 Lack of resources affects accuracy of investigation e.g. easier to find crime in poor socioeconomic suburbs
 CRIME
 Discretion also applies to decisions made by individual officers – decide whether to investigate certain behaviour, charge suspect or let young
offender go without caution
 May be influenced by race, appearance, family background, etc.
FOR idea of Police having too much power AGAINST idea of police having too much power
- Not all crimes have increased - Need power for increasing crimes
- Loss of basic rights such as privacy through phone tapping - Wider powers to detect/ investigate crimes and keep up with
complex technology
- Does not alter causes of crime such as social and economic factors, - Citizens tempted to take into own hands if police do not exercise
drug abuse, etc. enough power
- Power to detain without charge an infringement of basic human rights - Useful when suspecting terrorist behaviour
Reporting crime
 Victims and witnesses use their discretion to discern whether or not to report crimes
 Community programs have been established to help citizens fulfil their role in reporting a crime
 Crime Stoppers encourages people to report info on unsolved crimes or unknown offences, or suspicious or unusual activity
 Many do not report crime for various reasons: do not want to be involved as witnesses, fear of consequences if reported, inability to report
crime, etc.
 Some are widely reported than others such as property offences like car theft
 Domestic violence hardly reported due to shame or embarrassment
 Approx. 50% of women do not report DV (BOCSAR)
Investigating crime
Gathering evidence Use of Technology
 Evidence Act 1995 (NSW)- must be obtained in proper and lawful  Crimes (Forensic Procedures) Act 2000 (NSW) – suspects,
manner volunteers and people convicted may be tested decided after
 Limits on the way police gather evidence and type that can be used – R v Fernando and Fernando [1995]; allowed to take
 Strict procedures need to be followed by police- court warrant required samples such as blood or mouth swabs
 Evidence includes testimony of accused, police and witnesses, physical  Advancements in technology have allowed police to carry
evidence, etc. systematic and convenient investigation process
 Police may be specially trained for the job of taking evidence  Scientific and technological advances have made processing
 Interview possible witness, collect list of stolen property, gather and crosschecking of databases easier
physical evidence  Person must consent to sample- police can apply for using
 Role of police to gather evidence to support a charge (formal reasonable force to take sample through magistrate
accusation)  Police surveillance (police use deterrence) teams able to
 Involves taking witness statements at the scene of crime or detectives record video footage and audio using digital methods R v
looking at evidence left Gittany [2013]
 Must happen quickly- witness may forget what they saw/heard or before  Cybercrime units use technology to track criminal activity
it is compromised through Internet to prevent computer offences; can take
 Inadmissible evidence cannot be considered by judge or jury in court if sample by reasonable force after obtaining order from
it has been contaminated, compromised or tampered magistrate
Use of warrants Search and Seizure
 Legal document issued by magistrate or judge authorising police to  The Law Enforcement (Powers and Responsibilities) Act
conduct arrest, search, seize property or phone tap 2002 (NSW)- procedures for police to follow when
 NSW police can use sniffer dogs without warrant to search for drugs at conducting personal search or strip search- respect dignity
pubs or clubs- require warrant to use dogs in other public places  Limits and process requirements protect rights of an
 Helps ensure police power is used appropriately to protect the rights of individual when gathering evidence
the community and to prevent misuse of power  Search people, places, motor vehicles and seize/take
 Police must present reasons for warrant- emergency warrants obtained evidence
over phone  Can search anyone suspected of stolen property or anything
 NSW police required to have valid warrant before they can enter and intended to be used to commit crime
search premises  Wide power to ensure community is out of harm’s way
 Copy of warrant given to occupier- may also videotape the search to use  Can search people and seize and detain things in certain
in court and to prevent improper procedures of planting evidence circumstances- have power to search and seize without court
 Remove items relevant to investigation- withheld until case is warrant
completed  Represent intrusion into people’s privacy or personal space
 Weapons, drugs, etc. used as evidence in trial  Can start a warrant if they believe there is something
 Custom warrant: can conduct search at any time where drugs may be suspicious about an individual’s behaviour
involved; can use reasonable force  May search things such as person’s body, bag, clothes or
possessions
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Arrest and charge, summons, warrants
Arrest and charge
 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)- must declare why under arrest, why he or she is being arrested,
given consent to do so; contains conditions under which police can lawfully arrest person;
 Catch suspect committing offence
 Believe on reasonable grounds that suspect has committed or about to commit offence
 Where person committed serious offence has not been tried
 Possessing warrant for person’s arrest
 Warrants provide safeguard for ordinary citizens against misuse of police powers- last resort
 Arrests deemed to be applied too early in investigative process
 Police must state why person under arrest- protect rights of individual to know
 Can use reasonable force to arrest- shooting permitted extreme cases
Charge Summons
 Police must either charge suspect or release unconditionally  A legal document that states when and where person must appear in
 If charged- bring before magistrate or authorised officer after court, and if they are accused, the charge to which they must answer
detention period- brought before court for bail hearing  Witness also receives summon document- appear in court specified
 Police exercise discretion: lay criminal charges against arrested date as evidence
person  Failure to attend result in summonsed person arrested and charged
Bail or Remand
Bail Remand
temporary release of accused person awaiting trial on conditions such as sum of money as guarantee period spent in custody awaiting trial at
 At bail hearing authorised officer determines whether accused should be released on bail or a later date- done if bail is denied
remain in custody until the trial  Against people who have committed
 May also be in form of surety (another person, like a guarantor, agrees to provide financial violent crimes, dangerous criminals,
guarantee that the accused will return to court for trial repeat offenders or those thought to
 Violent offenders- harder to obtain bail- fear of committing another offence be flight risk
 Restrictions to bail have been added to the Bail Act 197 (NSW)- drug trafficking or serious  Accused remains in detention until
domestic violence- ‘presumption against bail’ trial date set
 Denying bail may have impact on accused person- extensive period of custody before final  If guilty- time offender spent in
verdict reached remand taken off from sentence
 Can make, add, apply for bail if new facts are found or no legal rep. was given first time
Detention & Interrogation, Rights of suspects
 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
 Can only detain for period of 4 hours; under 18 have right to have adult present
 Apply to magistrate for warrant extension for 8 hours – rest periods allowed i.e. bathroom, medical condition, waiting for guardian, legal rep.
or family member, etc.
 Usually interrogated in this process- must issue caution (statement issue to suspect when detained informing them of their rights)
 Detention of Mohamed Haneef 2007: arrested for allegedly having connections with terrorists in Britain; violation of ICCPR
- Detained for 12 days without charge – dropped after further investigation; residential detention allowed him to come and go freely but
not work
Rights of the suspect:
 Suspect has right to silence except with vehicle accidents where license, name and address is required
 Right extends to courtroom where judge not able to interpret silence as guilt – protect suspect from clever barristers that twist words however
may impede achievement of justice
 Right to privacy – can refuse to search persons except if police have warrant
 Communication – with friend, relative, doctor, etc.
 Lawyer – should be allowed to be present at interrogation however not an absolute right
 Illegal evidence – confession must be voluntary and recorded correctly to be used as evidence in court – judge must consider community
interest for fair trial when deciding whether to accept/reject evidence
3. Criminal trial process
Court Jurisdiction
 Depends on a few issues including:
- The seriousness of the matter- summary or indictable
- Whether matter is being heard for the first time or involves appeal (application to have higher court review decision of a lower court)
- Nature of offence- divisions within courts have authority to hear particular cases
- Age of the accused- whether person under 18 or over 18
- Type of hearing e.g. bail hearing, committal hearing, etc.
- Whether crime is offence under state or federal law
 Case then placed in court hierarchy (system of courts within jurisdiction from lower to intermediate to higher courts
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 If offence relates to Commonwealth law, prosecuted by the Commonwealth Director of Public Prosecutions
 Judiciary Act 1903 (cth)- states and territory courts given power to hear federal criminal court cases
 Federal offences often heard in the Federal Court of Australia- summary jurisdiction over criminal matters
 Original jurisdiction: authority of the court to hear a case for the first time
 Appellate jurisdiction: authority for court to review matters on appeal from another court

LOWER COURTS
the Local Court of NSW Coroner’s Court
 Local Court Act 2007 (NSW) sets jurisdiction and operation of LC  Powers outlined in the Coroners Act 2009 (NSW)
 Deals with majority of criminal prosecutions in NSW- deals with summary  Role of coroner is to determine identity of deceased, date,
offences and conducts committal proceedings (magistrate decides whether place, manner and medical cause of death
there is enough evidence for a case to proceed to trial in a higher court)  Investigate disappearances; deaths where medical cert.
 No jury present- tried in front of magistrate- referred to as ‘Your Honour’ has not been issued, or death occurred in suspicious or
 Bail hearings usually held and committal proceedings for serious offences unusual circumstances i.e. violent or unnatural way,
held accident that may have contributed to death, etc.
 Heard by higher courts in front of judge and jury-if sufficient evidence  Conduct coronial inquest- court hearing where coroner
provided, accused ordered to stand in higher court- if not then discharged considers information- call witnesses to give evidence
 Heard and determined much faster, less formalities, cost of hearing is less  May conduct post-mortem examination to determine time
 Has limits over sentences it can pass- serious matters tried in higher courts or cause of death and uncover evidence used in a criminal
to ensure justice for all parties trial
 Offences dealt by Criminal Procedures Amendment (Indictable Offences)
Act 1995 NSW
Land & Environment Court Children’s Court
 Deals with interpreting and enforcing environmental law in the state of  Established in 1987 under Children’s Act 1987 (NSW)
NSW  Deals with matters relating to children and young people
 Deals with civil and administrative disputes related to environmental under the age of 18
planning  Closed court- protect identity of c & young people-
 Criminal jurisdiction over illegal polluting or dumping presided over by magistrate and no jury

INTERMEDIATE COURTS
the District Court of NSW
 Established under District Court Act 1973 (NSW)
 Trial court where matters can be heard before judge and jury- appellate jurisdiction- hears appeals made by lower courts
 Hears serious criminal matters- indictable offences except for murder and treason
 Involve jury of 12- decide guilt or innocence based on evidence presented in the court trial
 Matters heard in the court:
- Offences against person: manslaughter, sexual or indecent assault, assault occasioning actual bodily harm or assault of police officers
- Property offences: larceny, robbery, embezzlement, b & e
- Drug offences: supply, manufacture or production of prohibited drug
- Driving offences: dangerous or negligent driving causing death or serious bodily harm

SUPERIOR
Supreme court of NSW The court of criminal appeal
 Supreme Court hears most serious criminal offences as well as civil matters  State’s highest court for criminal matters- hear
 Constituted under Supreme Court Act 1970 (NSW) appeals from person convicted or sentenced by
 Original criminal jurisdiction include: District Court or Supreme Court judge- can also be
- Murder, manslaughter and attempted murder brought from L & E court
- Major conspiracy and drug related charges  Heard by three judges- significant issues are 5
 Commonwealth prosecutions for serious breaches of Corporations Law judges
 Jury of 12 people- heard with highest level of formality and cost  Highest court of appeal in NSW- jurisdiction to
 Appellate jurisdiction with the CoCA hear state and territory appeals

FEDERAL COURTS
The high court of Australia
 Highest court of court hierarchy
 Constituted by s71 of Constitution under Judiciary Act 1903 (Cth)
 Original jurisdiction limited in criminal matters- appellate jurisdiction to hear appeals from all state and territory supreme courts
 Deals with cases concerning Constitution and its interpretation- may include criminal laws
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The adversary system
 System where both parties are given the chance to present their case to an impartial judge and jury
 Prosecution usually State (Crown), case is prosecution
 Court sentences wrongdoers if guilty and imposes punishment
 Determine the truth in an unbiased and objective manner
 Judge and jury in indictable offence acts as impartial observer- determines guilt or innocence based on evidence and arguments presented
 Achieves justice- fair system allowing both sides to present case- less prone to biasness
 Lawyers have equal opportunity to present the truth- jury impartial observer- fair and just
The adversary system as a means of achieving justice
 Less likely to discover truth because of standard of proof required, rules of evidence (hearsay, opinion, relevance)
 Oral exam (witnesses); only to questions asked – prevent full truth
 Advantage with skilled barrister/solicitor – could determine sentence
 Witness give bad impression – may be disbelieved
 Better to look at past records of accused; inadmissible in adversarial trial
 Ensures both sides follow rules of evidence for just outcome
 Appeal gives chance to rectify mistakes
Legal personnel in a criminal trial

Judges and magistrates Prosecutors

Magistrates:  Crown represented by prosecutor- role to prosecute offender and obtain sanction or
 magistrates preside over a local court. In punishment for offence. TWO TYPES:
summary cases for criminal law the 1. Police prosecutors- used to prosecute summary offences- intensive investigation of
magistrate must determine guilt or matter- gather evidence and info used at trial to form case against accused
innocence and pass a sentence.  Required to give testimony at trial to aid prosecution’s case
 Also conduct committal proceedings for  Cases prosecuted by PP in Local and Children’s Court- handle most summary cases in
indictable offences to be tried- usually hear NSW
bail proceedings 2. Public Prosecutors- employed by DPP- prosecute indictable offences
Judge:  Director of Public Prosecutions:
 conduct the trials according to the rules and - conduct committal proceedings for indictable offences- independent authority
principles of the law prosecutes serious offences on behalf of NSW Govt.
 Expected to remain impartial at all times, Barristers or solicitors:
their rulings must be based on law and the  prosecute case and gain conviction verdict using evidence gathered by police
evidence provided to them by the  Ask questions of witness on stand and draw out truth from evidence and testimony given
prosecution and defence.  Does not investigate crime prosecutes one sufficient evidence has been provided
 Maintain order in courtroom, oversee  Reviews cases reported by police- decision to prosecute depends on:
proceedings - Evidence sufficient or not to establish elements of offence
 Trial conducted legally and fairly for both - Evidence sufficient to gain conviction by jury
parties - Discretionary factors to determine public interest: seriousness, circumstances of
 Decide questions that arise with law offence, length and expense of trial, etc.
 Make decisions about points of law-  Public defenders- barristers who appear in serious criminal matters for accused granted
instructions to jury to make sure legal aid
proceedings are understood  Granted public defender if eligible to receive legal aid- paid public barristers, independent
 -Trial by Jury: Judge explains to Jury – of govt.,
outline questions that must be answered to  Offer advise in relation to criminal trials, sentence matters and appeals of D & S Court
reach verdict  Public Defenders Act 1995 (NSW) (Appointed)

Pleas and charge negotiation

 Law requires accused to enter a plea
 The Plea: The law requires an accused person to make a plea in relation to the charges they are facing.
 Major impact on how case is dealt with- does not require witness testimony- sentenced straight away
 Magistrate will commit accused for sentencing in a higher court if the guilty plea is made at committal hearing
- Guilty Plea: the matter will be dealt with quickly because the matter goes straight to sentencing
- Only determine what sentence to impose
- No criminal hearing
- Not Guilty: the case must go to trial and the prosecution must convince the jury of the accused’s guilt.
 Plea Bargaining: A plea bargain is used to get the accused to plead guilty to an offence in return for something. It is an agreement between
the prosecution and accused on acceptance of a guilty plea
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- Advantages: efficient, quick and inexpensive; can save participants and community from unnecessary pain and expense; protect
witnesses from being cross-examined and the ordeal of giving evidence; conviction on lesser charge better than none at all in the eyes of
the victim and community
- Disadvantages: may get a lighter sentence than deserved; doesn’t demonstrate the idea of justice; increases rate of criminal convictions;
accused pleading guilty for something they are innocent
 Implications for Plea Bargaining
- The Accused – Pressure to plead guilty, may get lighter sentence, prepared to plead guilty to lesser charge due to inability to afford costs.
- The Victim – Saves victim from ordeal of being cross-examined/giving evidence, lighter sentence: lack of retribution for victim, accused
wasn’t charged for what they did
- The Community – Witness in community saved from ge & c-e, quick/inexpensive – no court hearing, lighter sentence: increase in risk of
reoffending, secretive process – prevents achieving justice by not being seen by community
 Legal Representations
- Important because rules of evidence and procedure can be difficult for a non-lawyer to deal with
- Defence lawyers: prevent evidence in favour of accused to discredit evidence of prosecution. Done through cross-examination of
witnesses
- Solicitor used in minor cases and barrister in more serious cases
- Important way to give access to legal system.
- If not provided, may be seen as available to those with considerable economic power
Legal Representation
Legal Aid:
o The Legal Aid Commission (LAC) has been established to ensure that people unable to afford legal representation have access to a lawyer.
o COURT DECISION: Dietrich v The Queen [1992]
o High Court recognised issue of obtaining unqualified person as representation
o Established decision of limited right to legal representation- justice is crucial to ensure fairness and equality
o Not everyone can afford legal representation- Legal Aid Commission Act 1979 (NSW)- provides legal assistance and rep. to disadvantaged
groups such as women, disabled persons, ATSI, and financially disadvantaged
o Legal aid is only granted in certain circumstances. The applicant must pass a means, merit and jurisdiction test.
o Means Test: an assessment of a person’s ability to afford his or her own representation.
o Merits Test: the likely hood of the case succeeding. Legal aid may not be granted if there is a strong case against the accused.
o Jurisdiction Test: the case must fall into defined areas of law.
Burden and Standard of proof
 Burden of proof: in criminal cases, the prosecution must prove to the judge and jury that the accused is guilty of committing the crime. May
also be on the accused in cases such as mental illness
 Standard of proof: the level of proof required for a party to succeed in court against opponent. Must prove beyond reasonable doubt the
accused committed the crime.
 Beyond reasonable doubt: standard of proof required in criminal law requiring prosecution to show there is no reasonable doubt that the
accused committed the offence.
Use of evidence, including witnesses
o Evidence Act 1995 (NSW)- use of evidence based on this act as well as procedures
o Admissible evidence must be relevant to case and legally obtained
o Prosecution must ensure body of evidence is available and likely to secure conviction
o Can be physical evidence, documentary evidence and witness testimony
o Includes: photographs, charts to explain evidence, tape recordings, DNA testing, weapons, clothing, etc.
Witnesses
o Most important = witness evidence- relevant knowledge about case or where crime took place, features of offender, etc.
o Subpoena: formal letter requesting person’s attendance at court- cannot be ignored
o Must tell truth or guilty perjury (lying to a court)
o Expert witness: someone who has studied an area of crime such as DNA examiner – give testimony in court in regards to results displayed
through DNA testing
Examination of Witnesses
o Examination-In-Chief: Witness giving evidence by answering questions asked by defence or prosecution – each side ask their own witness
questions
o Cross-Examination: Can be asked questions from opposing side – enables both sides to test the accuracy and objectivity of the evidence
o Re-Examination: Both sides can re-examine their own witness after cross-examination to clarify issues of cross-examination
Rules Of Evidence
o Rules & provisions of asking questions and obtaining evidence – ensures fairness:
o Hearsay: May only state what they have seen/heard themselves – not a recount
o Opinion: Cannot give opinion about evidence unless it is expert witness
o Relevance: Evidence that relates to the matter being assessed should be recounted
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o Character Evidence: Cannot state evidence about bad character of accused
Confession
o Can only be used if voluntary
o Right To Silence: Does not have to say anything at court – only when submitting corporation documents that may incriminate them
o Illegally Obtained: Inadmissible
Defences to Criminal Charges
There are two main types of defences:
o Complete/Absolute – a justification that excuses the defendant’s action and results in an acquittal.
o Partial – an excuse for the defendant’s action that might result in a reduction in the charge and/or punishment.
o Acquittal – judgement made that determines the innocence of the accused
Complete Defences
o Mental Illness – the law recognises that some people commit crimes as a result of mental illness (‘insanity’). It is the responsibility of the
defence to prove that the accused was insane at the time of the act. The defendant is acquitted if the court accepts the defence of insanity
because they did not have the mens rea. However, the court can have them placed in a mental health facility shown in the case: State of
Colorado v Holmes [2012]
o Achieving Justice: Person who doesn’t understand what they did was wrong, should not be held responsible.
o Test to prove mental illness rigorous – person who does understands knows that no one is ever wholly excused
o Self Defence – the defendant acted in defence of self, another or property; accepted in limited circumstances and only for ‘reasonable force’-
opinion of jury and accused of reasonable force may differ – Knew it was wrong but had to defend themselves from attach
o CASE: R v Zecevic [1987]
o Defendant must have reasonable grounds to believe life was threatened- ‘proportional and reasonable force’ to defend
o Claimed self-defence when he shot his neighbour – stabbed him and threatened to blow his head off
o Trial judge stated that Jury couldn’t consider it as self-defence
o HC said reasonable force depends on:
o Whether defendant believed it was necessary
o Whether this was based on reasonable grounds
o Automatism: where a person claims that they were not in control of their actions at the time of the criminal act being committed e.g. epileptic
fit. This defence is used to show that there was no mens rea.
o Mistake/Accident: acting under honest and reasonable mistake- could not form mens rea
o Compulsion – You must admit to both actus Reus and mens rea, and then claim to have been forced carry out the crime. There are two forms
of compulsion:
- Necessity: When the crime committed is not as bad as the possible outcome of not committing the crime – defendant claims to act necessary
to avert serious danger.
o CASE: R v Dudley & Stephens [1884]
o Killed companion who was near death – all three remaining fed off corpse
o Not available for murder
- Duress: The accused claims that a person forced them to commit the crime against their will. A jury must be convinced that the person had
strongly believed that the threat that forced them to commit the crime was genuine – frightened by threat or bodily harm
- Knowingly carried out crime because someone else’s or own life under threat
- Can be complete – people argue they were compelled to act criminally
- CASE: R v George Palazoff [1986]
o Cultivated & possessed Indian marijuana for trading – claimed under duress
o Appealed claiming Judge didn’t direct Jury properly with the defence
o Threats to appellants family relevant to duress
- Consent: the defendant claims that they acted with the victim’s consent. The defence of consent can be either complete or partial, and is
often used in sexual offences. Reduces liability
- Cannot be obtained by: force, threat, fraud, mistaken ID, mistake as to the purpose
- CASE: R v Mueller [2005]
o Accused touched, kissed Asperger woman; kissed her genital area and forced her to touch his penis – claimed it was consent
o Victim dint consent – silence or absence of positive resistance is not consent
Achieving Justice
o CASE: R v Dudley & Stephens [1884] – test to prove necessity rigorous: must prove it is in proportion to danger defendant was trying to
avert.
o Defence of necessity not available for murder
o CASE: R v George Palazoff [1986] – Threats must be sufficient to cause ordinary person to commit crime
o Allows people to act in a reasonable way to protect themselves/families
o CASE: R v Mueller [2005] –Allow people to consent to acts which may be illegal
o Law makes sure consent is free and voluntarily given and not obtained by force
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Achieving Justice of Provocation
o Only provable if the alleged provocation was sufficient for an ordinary person to have lost control
o Doesn’t exonerate offender
o Allows women who have suffered abuse to reduce liability if death caused
Does not Always Achieve Justice
o Homosexual advance defence – not a reasonable enough provocation to kill someone if heterosexual advances are not sufficient
o BWS & abuse excuse allows people to take law in own hands rather than legal system.
Achieving Justice to Criminal Charges
o Use of defences in general – Both at circumstances of alleged crime – complete or partial defence should be considered
o Decide if justice served
o Controversy with self-defence, consent, provocation
Partial Defences
 Provocation: The actions of one person cause the other person to lose control of their actions. It must be shown that the provocation was so
bad that a ‘reasonable person’ would have also been provoked into the crim and that the victim caused the accused’s behaviour. This defence
can only be used when charged with murder and will only reduce the charge to manslaughter.
 CASE: The Queen v Sebo [2007]
 Bashed GF Taryn Hunt with steering wheel lock – claimed provocation (bragging about cheating)
 Jury accepted Sebo was provoked – manslaughter: imprisonment for 10 years
 Appealed by State to ACD Court of Appeal on leniency – remained 10 years
 Diminished Responsibility: This exists when a person suffers from an abnormality of the mind that impairs their mental responsibility. This
defence is used when the accused is not consistently insane.
 Intoxication: a person was so affected by alcohol or other drugs that they did not know what they were doing.
 Battered Women’s Syndrome – may arise when a woman kills her husband or partner after years of suffering domestic violence. –Helps to
prove duress provocation or self-defence. – Lead to mitigation of sentence
Role of juries, including verdicts
o Central role in achieving justice- indictable offences- District/Supreme Court
o Rules found in the Jury Act 1977 (NSW)- selected at random from electoral roll
o Justice achieved by collating between random individuals rather than selectively chosen based on characteristics i.e. occupation
o Prosecution: defendant can reject Jury if they feel they may be bias
Challenging Jury
o Prosecution and defendant may challenge jury
o Peremptory challenges: This is the disqualification of jurors without providing sufficient reason based on age, gender, race, etc.
o Challenges for cause: based on person not being qualified or being suspected of bias
Eligibility for jury duty
o Important part of justice system for an accused to be tried by group of their peers
o Difficult to gain exemption from jury- sought by +65yrs, pregnancy, medical staff emergency, convicted criminals, members of legal
profession
Jury role
o Apply the law as directed by judge for verdict of guilty or innocence
o Must remain alert and focused on court hearing- unbiased and impartial- make judgement based on evidence
o Fair and open-minded when reaching decision to achieve justice
o Not be influenced by media or personal beliefs when reaching a decision- based on evidence and testimony
Verdict
 Majority verdict: 111-1’ – accepted after 8 hour deliberation
 Accused acquitted if not guilty- if guilty, judge passes sentence
 Time of decision varies as some cases may require time and deliberation whilst simpler cases may require less consideration
 Hung jury- not being able to reach a conclusive verdict as an entity- case is dismissed and retrial will occur
 Costs time and money of persecution and accused- result in extended period of custody for accused
 Jury Act 1977 (NSW) with Jury Amendment (Verdict) Act 2006 (NSW)
 Verdict where one or two people do not agree are allowed where time for deliberation has elongated

4. Sentencing & Punishment

Statutory and Judicial Guidelines
 Judiciary has the discretion of selecting sentence to give of fender and length of time
 Limited by statutory and judiciary guidelines
 Crimes (Sentencing Procedure) Act 1999 (NSW)- establishes laws and guidelines to deliver fair and just sentence – S59: any guilty of actual
bodily harm is liable to 5 years imprisonment
 Maximum Penalty- maximum sentence available to impose for an offence- rarely sentenced
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 E.g. maximum penalty for murder is life imprisonment in AUS- 14 years imprisonment for sexual assault – Amendments to Crimes (SP) Act
1999 adds minimum non-parole to offences. E.g. 10 years for aggravated sex assault
 Crimes (Sentencing Procedure) Act allows for NSW Attorney General to apply for guideline judgements
 Judicial discretion removed for cases such as mandatory sentencing- automatic sentence set by parliament for particular offences
 Deterrent- something that discourages or is intended to discourage someone from doing something – NON-PAROLE: Minimum time to be
spent in prison, PAROLE – Offender is released into community under supervision
 Court must not impose full-time prison without considering other alternatives
 Can impose fixed term of imprisonment if term is over 6 months – can fix parole/non-parole
 Parole period is quarter of total sentence – 4 year sentence serves 3 year non – parole
 Sentence 6 months or under must be fixed (non parole period)
 Guideline sentence is a judgement about sentence for a crime taken into account by courts
 NSW Attorney General can ask court to give guideline sentence for criminal offence
The purposes of punishment
 To ensure the offender is held accountable for his or her actions
 To protect the community from the offender and crime
 To prevent crime by deterring offender and other individuals
Deterrence
 Specific deterrence- punishment against an individual offender aiming to deter them from committing crime in the future
 General deterrence- punishment attempting to make example of an offender in order to send message to rest of community
 Issue of achieving justice in criminal law is that punishing one person more severely than others may be unjust
 Sentencing for the purpose of deterrence may be seen as unnecessary and harsh
 The Australian Law Reform Commission recommended that deterrence should not be used as sentencing objective in 1988
 Some do not deter individuals for example, prisons have many recidivists
Retribution
 Punishment considered to be morally right or deserved based on the nature of the crime
 Society seeks retribution on behalf of victims in impartial manner- punishment aims to protect community and victim – E.g. murderer should
be put to death
 Main justification for punishment
 Ensure offender held accountable for his or her actions – issues of fairness for offender and harsh implications
 Recognising harm to community and victim – may not always be successful: lead to offenders given different sentence to others committed
similar crimes
 CASE: R v AEM (Snr); R v KEM; R v MM
 Three teens sentenced to long terms of imprisonment due to sexual assault offence and effect on victims
 Judge takes into account effect on victim and family
Rehabilitation
 Avoiding harsh sentencing through special programs to help offender from committing offences in the future
 Recidivism- reoffending
 Encourages understanding, prevents criminals from falling into same patterns of crime
 Options and programs aim to give offender skills to function through society positively
 E.g. of fairness: Drug addict given rehab however drug theft will not be
Incapacitation
 Make the offender incapable of committing offences by restricting freedom; isolate offender
 Includes home detention, community work or licence cancellation
 Uncertain about whether offender will reoffend; cannot predict how long they’re a danger to society
 Large cost to the public
Factors affecting a sentencing decision
 Crimes (Sentencing Procedure) Act 1999 (NSW) sets out factors for judicial officers to consider
 Aggravating factors- make the offence more serious- lead to increased sentence
 Relate to the way offence committed, impact on victim and factors relating to offender
 Gratuitous violence- excessive violence without a reason or excuse
 Aggravating factors include:
 Offence: violence, cruelty or weapons- if injury or harm caused, motivated by prejudice, etc.
 Victim: if victim was vulnerable e.g. young or disabled; targeted for occupation
 Offender: abused position of trust or authority when committing offence; if offender is re-offender or has prior convictions
 Mitigating factors- make the offence less severe- reduced sentence- usually subjective factors:
 Offender is of good character; no prior convictions
 Youthful or inexperienced
 Pleaded guilty or assisted police
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 Honest remorse
 Judicial Discretion- a judge has to weigh up all the factors of the case and refers to the relevant cases.
 Role of the Victim in Sentencing-
o Advantages:
 Useful info about impact of crime – when offender has pleaded guilty and judge must hear victims evidence
 Give Victim a role in court process – community confidence in system
 Assist in rehabilitation of offender; hear the impact of their actions
o Disadvantages:
 Delivery/cross – examination can be embarrassing and upsetting
The role of the victim in sentencing
 Can be involved through a number of ways- reporting crime and assisting police
 Testify as witnesses, submit VIS- sometimes quite difficult and confronting i.e. sexual assault report
 Victims Right Act 1996 (NSW)- recognises roles and rights
 Victims dignity, compensation, protection from accused, identity and rights to info and assistance during criminal process
 Victim impact statement permitted for serious offences involving violence/death/physical harm – physical or psychological
 Can significantly influence sentence
 Provide opportunity for victim to express themselves in criminal process
 Family members in case of death sig. to case – argued against: may remove objective impartiality from judge’s process
Appeals
 Allows higher courts to supervise discretion of magistrates and judges when making sentencing decisions
 Appellant- the party who is making the appeal
 All individuals have the right to appeal:
 Appeal against conviction- the appellant argues that they did not commit the offence for which they are found guilty
 Sentence appeal- an appeal against the severity or leniency of a sentence
 Depend on the court- various time limits and process requirements
 Person may directly appeal to Supreme Court if on question of law
 Crimes (Appeal and Review) Act 2001- states rights of any person convicted or sentenced in LC and his or her right to appeal to DC
 For the Court of Criminal Appeal- must prove legal error- harsh or lenient sentence
 Final court of appeal is HCOA- right to appeal granted in rare circumstances
 Higher courts: Reduce or increase sentences
 Issue GUIDELINE sentences
 Ensure consistency by establishing maximum/minimum sentences
Types of penalties
Caution
 Formal warning without charge issued by police for less serious offences
 Police have power to issue caution as a way to avoid court system
 Young Offenders Act 1997 (NSW) – police use discretion to issue formal caution to young offenders between 10 and 18 for minor
offences
 Conference where offender, police and family discuss offence and implications
 E.g. Cannibal Caution Scheme
Criminal infringement notice
 Notice issued by police outside court alleging criminal infringement and requiring payment of a fine
 Allow police to issue on-the-spot fines for certain offences including larceny of >$300, offensive behaviour, obstructing traffic, etc.
 Removes burden on criminal court system- allow police to issue fines for minor offences
 Increase in police powers – offenders have option of electing to have matter heard in court
 May not be effective as deterrent – police say quick, save police/court time
 Charged fine by court anyway – if arrested and charged
Conviction or no conviction recorded
 Judicial officer has option to record conviction against offender or pass sentence with no conviction recorded
 May decide to record conviction without imposing sentence
Fines
o The payment of money by the offender to the state and is one of the most common forms of penalties – expressed in penalty units; can have
licence taken, property seized, wage garnished
o The judge will use their discretion when imposing a fine and so they will consider the offender’s income and their capacity to pay the fine
when determining its size.
o Most commonly imposed on strict liability offences and regulatory offences. Non-payment results in more serious penalties. E.g.
imprisonment or periodic detention
Bond: (also known as recognisances)
 Compulsory condition imposed on the offender for a period of time- must comply with
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 Good behavior bond involves bond period of up to 5yrs- if breached- come to court again with more serious penalties – E.g. paying victim
compensation or accepting Parole Authority Supervision
 Considered where lesser penalties are not considered efficient and imprisonment too severe
 Include refraining from activities such as gambling, family counseling, rehabilitation, etc.
Suspended Sentence:
 Sentence of imprisonment imposed but suspended on condition of good behaviour
 Court can impose sentence of imprisonment for up to 2yrs and suspend original sentence- breach of bond can reinstate original sentence
 Provides opportunity to rehabilitate and maintain ties with community- signals deterrence of how close the offender was from a harsher
sentence
Community service orders
 Offender is sentenced to serve specified hours of work in the community- up to 500hrs
 Punishing and shaming offender- allows for rehabilitation making amends with comm.
 Rehabilitate outside prison system and avoid harsher penalties
Imprisonment
 Most severe sentence imposed in Australia and is a last resort
 S5 of the Crimes (Sentencing Procedures) Act 1999 (NSW) set maximum penalties after all possible alternatives are considered
 Deprives person of liberty and requires careful consideration
 Correctional centre: a prison- offender is held in custody for the period of their imprisonment
 Non-parole period: period of imprisonment for which parole cannot be granted- ¾ of entire imprisonment sentence
 Parole: release of a prisoner before the sentence is completed with the promise of good behaviour
 Australian domestic law aim to achieve justice by only considering imprisonment as a last resort
Home Detention
 Imprisonment sentence where the offender is confined to their home for monitoring
 Probation or parole officer monitors the order- random visits
 May go to work or medical centre- electronic monitoring device attached – care for family needs
 Provide opportunity for rehab- keep offender out of prison system- integrate into family
 Cannot be used for violent/sexual offences i.e., murder, sexual assault, fire-arms offences
 Governed by Crimes (Sentencing Procedure) Act 1999
Periodic Detention
 Also known as weekend detention- spend period of each week or month in prison
 Allows offender to live with community whilst also be held accountable for actions
 Serves purpose of rehabilitation- allows for offender to take responsibility
 Begins at 7:00pm on Friday and ends 4:30pm on Sunday
Diversionary Programs
 Alternative to traditional court system- focuses on therapeutic justice and rehab- part. Offences
 Improve offenders’ future prospects by assisting in needs
 Magistrate of LC adjourning case- offender attends rehab or special hearing- education, medical or psychiatric treatment, social welfare
assistance, etc.
 NSW Bureau of Crime Statistics and Research- released report of effectiveness of DC in 2008
 Offenders who completed less likely to be reconvicted than those of traditional Penalties
 37% less likely reconvicted, 65% for any offence, 57% for drug offence
 Drug Court 1999:
o Rehabilitate drug offenders so no longer dependant on drugs
o Youth Drug & Alcohol Court modeled on Drug Court
o 261 offenders began – 168 remained on 12 month program

 Magistrates Early Referral Into Treatment Program [MERIT]:

o Operates in local courts and allows magistrate to adjourn cases for 3 months, whilst offender attends rehabilitation
o Participation voluntary; completion taken into consideration
 Circle Sentencing:
o Support to Aboriginal offenders
o Reduces cultural barrier between Aboriginal and the courts
o Community assistance in rehabilitating offender to redress harm done to victims
Alternative methods of sentencing
Circle Sentencing
 For some Aboriginal offenders- conducted in a circle of local community members and a magistrate
 Form of customary law- decide punishment as a community
 Improve Aboriginal confidence in legal system- understanding between ATSI comm. and courts
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 Program objectives being met
Restorative Justice
 Voluntary conference between offender and the crime
 Brings victim and offender together to create a sense of understanding- impact of offence on victim and others, held accountable
 Confronting- resolve problems, victims ask questions- attempt to move on with life
 Offender apologises and make amends
 Valuable part of rehabilitation process- run by the Restorative Justice Unit of the NSW Dept. of Corrective Services
 Based on youth conferencing initiatives- 15-20% reduction in reoffending
 Mainly relate to minor infringements
Post-Sentencing Considerations
Security classification – Crimes (Administration of Sentences) Regulation 2008 (NSW)
 Maximum, medium and minimum security- some have more than one type according to seriousness of crime e.g. goulburn (maximum);
Tamworth (medium); Silverwater (minimum)
 Maximum security for offenders committed the most serious crimes; Medium security- can move around more freely within high walls and
security fences; Fewer barriers to escape- inmates allowed open conditions
Implications
o Determines which prison to serve sentence in and which rehabilitation program prisoner has access to
o Determines privileges; company/isolation
o Effect prison experience and chance of integrating into security
Protective Custody
 Provide centre’s for offenders vulnerable from attack by other prisoners
 Authorities have duty of care for safety of offenders to protect their rights as well
 Cannot subject offenders to risk of physical harm for punishment
 Placed into custody for certain offences that are deemed as offensive such as offences against children – protects prisoner from harm and
access to work and education programs
Parole
 3 years: Automatic parole; can apply for parole if minimum sentence served
 Conditional release of prisoner from custody after completion of minimum term of sentence
 Provides offender with incentive for rehab
 Increases likelihood of overall reform of offenders- encourages prison discipline
 If parolee meets conditions- let out early on good behaviour such as not reoffending, employment, avoiding certain area of crime – Parole
Authority; closely supervised; subject to restrictions & expectations
 Intended to assist offender in process of reintegration into community
 Aim to ensure offender will not reoffend
 E.g. obtaining from employment, mixing with certain people or going to certain places

Preventative and continued detention

 Preventative detention- when a person is placed in detention in case of future harm that they may commit an offence – one way of using
 Detained without any proof of having committed an offence – suspected of terrorist activity – 2nd way
 Purpose: incapacitation- protect community from threat of crime
 Post-sentence preventative detention- person has already been sentenced and has served the sentence
 Preventative without charge- can occur at any time
 Most jurisdictions have legislation enabling powers of preventative detention
 Terrorism (Police Powers) Act 2002 (NSW) gives police power to make an application to detain someone for 14 days if suspected of
terrorism
 Post-sentence- detaining offenders after already serving full sentence
 Crimes (Serious Sex Offenders) Act 2006 (NSW) allows for continued detention- on-going detention of person after serving full sentence
 Ensures safety and protection of community and facilitates the rehab of serious sex offenders
Sexual offenders registration
 Child Protection (Offenders Registration) Act 2000- persons convicted of violent or sexual offence against a child required to register at local
police within 28 days of sentencing or release from custody
 Adult offenders register maximum of eight years and juvenile 4 years
 Provide range of personal info as well as travel plans – 10,500 registered nationally 2009
 Justified on basis of protection of community
 Target certain offenders beyond period of sentence- deny chance of moving on from rehab process – subject to supervision upon release from
prison, including electronic tagging
Deportation
 Migration Act 1958 (Cth)- any migrant living who is not a citizen may be deported if they are tried and convicted of criminal offence
 Serious effect of sentencing- publicized
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 Appear to harshly treat a person as a problem that can be solved by moving it elsewhere
 Implications:
o Protect Australian citizens from re-offences
o Government: not obliged to assist with re-assimilation
o Causes hardship on offenders’ family particularly if main income earner

Implications of Preventative & Continued Detention

o Protect community from possible harm caused by offenders
o Consequences serious; people detained under legislation already served sentence
o Detention only for people who may commit a crime in the future
o Violates ICCPR
o “No one shall be subject to arbitrary arrest or detention”

Implications of SOR
o Monitor offenders; chance of re-offending minimized
o Given chance to assimilate into society
o Some residents may object, if publicized
5. Young Offenders
Age of criminal responsibility
 Law aims to prevent children from being exploited, protect them from harsh consequences of uninformed decisions, etc.
 ‘Doli incapax’ – Latin word meaning ‘incapable of doing wrong’- children cannot be held responsible for their actions and cannot be guilty
of the offence; between 10-14
 Extent of mens rea in a criminal case is significant – children deemed as incapable of having criminal intent – prosecution must prove that
child knew it was wrong not just naughty
 Convention on the Rights of a Child 1989- aims and requirements for treatment of children and young people- minimum age should be
established to determine whether there was sufficient mens rea to hold under aged offender accountable
 Issues:
o Some argue age of CR should be lowered – others say current laws regarding the age of CR should be continued
 Arguments:
o ‘Doli Incapax’ is old – fashioned – doesn’t hold for modern children, others say because it is so old, should be cautious when reforming
o Modern children have compulsory education from 5 – mentally & physically develop quicker
 Those who commit offences don’t attend school regularly – truancy, exclusion, etc.
 Family & social environment influencing actions not school environment
o Modern children are sophisticated – greater understanding due to technology
 Technology causes quicker brain deterioration and ability to determine what is real
 E.g. People getting injured may recover quickly – thought due to cartoons/video games
o Leniency at the expense of community protection
o Victim/family wish for retribution/punishment for perpetrator
 Adults acquitted from serious criminal offences due to argued lack of mens rea
 Inconsistent to treat children harshly

Age Acts/ Legislation Criminal Responsibility

Children Children (Criminal Proceedings) Act 1987 Cannot be found guilty of committing an offence- not seen mature enough to
Under 10 commit extreme offence with mens rea
years old Lays out minimum age of criminal ISSUE: proving that an offender under the age of 10 understood the act to be
responsibility wrong is problematic
Punishing children at young age seen as cruel treatment
Children Rebuttable presumption of doli incapax. Presumed not capable of committing
10-13 an offence- prosecution may show the child knew what they were doing was
years Children (Criminal Proceedings) Act 1987 wrong- can include psychiatric evidence, evidence of parents and teachers or
behaviour statements
ISSUE: Doli incapax should be removed due to increasing awareness of
wrong in children
Prosecutions role becomes difficult- not enough evidence to rebut
presumption of DI
The rule seen as unfair especially to victims of the crime
Young Children (Criminal Proceedings) Act 1987 Criminally responsible for any offence committed- case may be heard in the
People Children’s Court
14-17 People under the age of 18 are subject to the Deemed mature enough to understand the seriousness of offence
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years act- protections and requirements stated People aged >16 cannot have criminal conviction recorded unless indictable

CASE: R v LMW [1999] – death of Corey Davis

- 10-year-old child accused of manslaughter after dropping 6-year-old into Georges River
- Initially dismissed due to age of child- DPP persisted and took case to NSWSC
- Jury acquitted LMW with doli incapax
- Prosecution argued he was aware of his actions of pushing Corey Davis
- Various appeals- determined there was sufficient evidence for jury to make a decision on doli incapax for the jury to decide- acquitted LMW
three hours after deliberation
The rights of children and young people when questioned/arrested
 Children and young people require protection when dealing with police
 Seen and Heard: Young People and the Legal Process- issued by ALRC in 1997 examining relation, standardising minimum age of CR and
national standards through legislation
 Jurisdictions comply with CROC agreements ratified by AUS
Questioning young people
 Police are entitled to require that a young person provide them with name, address and proof of identity.
 As with adults, police have no general power to detain a child for the purpose of questioning. A child or young person cannot be taken to the
police station unless they are under arrest. If arrested, the child’s parents or guardian must be contacted
 Again, as with adults, children and young persons are entitled to exercise their right to silence and, apart from providing name, address and
proof of identity, do not have to participate in a record of interview with police. There are some exceptions to this in relation to, for example,
motor vehicles. If a young person is the owner of a motor vehicle, they are required by law to tell police the name and address of the driver of
the vehicle if it is alleged that the driver committed a driving offence – Rights contained under Law Enforcement (Powers & Responsibilities)
Act 2002
 Police cannot question a child for more than two hours at any one time.
 A child is entitled to have their parent, guardian or solicitor present during questioning. If the child is younger than 16 years, parental
permission must be obtained for another supporting adult to be present during questioning.
 Must be informed of rights and assisted in exercising rights – E.g. Legal Aid Hotline
Searches, arrest and interrogation
 Law Enforcement (Powers and Responsibilities) Act 2002 prohibits strip search under 10- between 10 and 18 must have adult present
 Information or statement of child or young person must be given with trusted adult present such as parent or lawyer
 Arrests are done same way as adults- police must have reasonable grounds and a warrant
 Young peoples rights are severely protected- defined as ‘vulnerable people’ under Law Enforcement (Powers and Responsibilities)
Regulation 2005
Why young offenders are treated differently in criminal justice system
o Given special protection in many circumstances such as education, care & control, medical treatment, etc, - inconsistent to treat harshly in
adult matters
o Less likely to understand court procedures – intimidated
o Dows not always understand consequences of his/her actions
o Greater chance of resuming normal life and becoming normal citizens
Children’s Court- procedures and operation
 Listed under Children’s Court Act 1987- dismissal of charges with caution, fine, bond, probation, community services, suspended sentence –
Child’s education shouldn’t be interrupted, child should’ve at home, penalty should not be greater than adult who commits similar offence
 Presided by a magistrate
 Hear any offence other than serious indictable offence (higher court- murder, assault, etc.)
 Committal proceedings of any indictable offence
 Follows procedures of the Children’s (Criminal Proceedings) Act 1987
 Equal rights as adults, right to be heard in court, responsible for their actions, should reside in his or her home and education should not be
interrupted
Penalties for children
 CROC encourages rehabilitation as a penalty- children and young people have better chance of reintegrating into society through rehab
 Children’s (Criminal Proceedings) Act 1987- penalty shall be no greater than that of the adult
 Children should be assisted with reintegration into community to sustain ties to family and community
 Children should accept responsibility for their actions
 Penalties are less severe and consider child’s rehabilitation
Justice Juvenile Centers
 Detention centre housing young offenders subject to control order
 Control order- similar to adult sentence and served in a JJC
 Severe penalty given to children- 2 years max.
 Managed by NSW Juvenile Justice (Department of Human Services)
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 Provide safe, humane and secure environment for young offenders
Sentencing considerations for young offenders
 Attention needs to be placed on social factors i.e. homelessness, family circumstances, health conditions, etc.
 E.g. consider fines and whether offender may be able to repay them and the effect this may have on rehab (working long hours to pay for
fines)
 Community service orders beneficial for young people
 Seriousness of offence must be considered and court must keep rehabilitative focus a priority unlike purposes of deterrence and retribution
 Grave adult behaviour- where young offender has acted like an adult in committing offence; indicated by seriousness of crime and other
surrounding factors
 CASE: R v Pham & Ly [1991]
 Committed combined robbery breaking into house and injuring occupants
 Bound and gagged victims with sticky tape- proceeded to rob property
 Sentenced to 12months on remand- appealed in Criminal Court of Appeal- overturned as inappropriate and inadequate
 Case was referred for resentencing
Alternatives to court
 Main aim is to encourage rehabilitation and to prevent a bad impact on the child’s wellbeing
 Principles of YOA 1997- to prevent restrictive sanction, children should be informed of their rights, criminal proceedings should not start
unless no other appropriate alternative
 On the spot for minor offence
Warnings
 Official notice given to young offender by investigating officer without conditions attached
 Can be given for violence or discretion of investigating officer- informal- must be recorded

Cautions
 Formal recorded alternative to prosecution- offender admits to offence and consents to formal police caution
 Aspects of offence considered i.e. seriousness of offence- may be taken into Children’s Court

Youth Justice Conferences – Young Offenders Act 1997 (NSW)

 Measure to divert young offenders from court system through conference that addresses the offender’s behaviour in a holistic manner
 Allow offender to take responsibility and promote family understanding of issues
 Enhance rights of victims and make decisions that reflect needs
 Parent/guardian, victim, support of victim and mediator
 May include apology for victim, compensation, drug or alcohol rehab or anything appropriate
 If not agreed, court proceedings may be commenced
 Allows offender/victim to meet and work out best way for offender to compensate
 Allows victim to tell offender about impact of the crime – communication for positive assimilation
 Disadvantages:
o Reduced rates of re-offending; rates still high
o Does little to address causes of youth crime
o May not always have retribution for victim/s family
The Youth Drug & Alcohol Court
o Established under Children’s (Criminal Proceedings) Act 1987 (NSW)
o Offers opportunity to participate in intensive program of rehab before being sentenced
o Program lasts 6 months; detoxification, rehab & close supervision from court
o Completion may lead to lighter sentence
Intensive Program Units & Mentor Programs
o Imposed as condition of probation or early release from detention centre
o Provide psychological counseling to serious young offenders or those with psychological problems
o Mentor programs for ATSI or non-English speaking background
o Allow offenders to be mentored by elder person to assist in rehab and prevention of further offences
EFFECTIVENESS
 YOA encourages offender rehabilitation and uses diversionary means to resolve conflict
 Adheres to CROC obligations which state under Article 40(3)(b)- “wherever appropriate and desirable, there should be measures for dealing
with such children i.e. children who have broken the law, without resorting to judicial proceedings, providing that human rights and legal
safeguards are fully respected”.
 May not be used for wide enough range of offences and excludes some young offenders due to its restrictions
 May work in serious offences- requires offender to take responsibility for his or her actions and make amends with harm caused to victim/s
Effectiveness of the criminal justice system when dealing with young offenders
Ensure Effectiveness:
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o CR law effective – children don’t have experience/mental capacity to form mens rea
o More vulnerable – greater chance of rehab and becoming responsible citizens
o Children court protects who are charged with criminal offence and has them accountable
o Separate detention protection from adult criminals
o Sentence alternatives allow greater chance for rehab
o Programs such as Intensive Program/Mentor Programs help preventing children and young people from reoffending – protects society from
future harm
Limit Effectiveness:
o Some say CR is too high and many are excused from crimes where they should be punished
o Laws regarding police enforcement have an unfair impact on children
o Some perceive sentencing altogether, such as warnings, caution, YJC as soft options that encourage re-offence
o Youth Justice does little to address causes of youth crime
6. International Crime
 Any crime punishable by a state with international origin or consequences; crime recognized as punishable by international community
 State sovereignty- authority of independent state to govern itself; impose and collect taxes; make war and peace; or form treaties with foreign
states
Categories of international crime
Crimes against the international community
 Most serious crimes committed that are condemned by the int. community
 Genocide: acts which have intention of exterminating all or part of a national, ethnic, racial or religious group
 War crimes
 Hijacking of aircraft and slave trading
 States may be unwilling or unable to prosecute individuals for these crimes due to positions of power or offenders fleeing to other
jurisdictions
Genocide
 Article 6 of Rome Statute gives ICC jurisdiction over genocide. Can include:
 Killing members of group
 Causing serious bodily harm
 Inflicting conditions of life calculated to bring physical destruction
 Imposing measures to prevent births within group
 Transferring children to other group
 First criminalised by Convention on the Prevention of the Crime of Genocide in 1948
 Difficult to prove- documents, evidence, forensic evidence, review of killings, military orders, testimonies, expert opinions, etc.
 Court must prove beyond reasonable doubt an intention to destroy group was made
 Dealt with by specific tribunals prior to ICC such as International Criminal Tribunal for the Former Yugoslavia
Crimes against humanity
 Systematic attack against any civilian population with knowledge of attack; murder; enslavement; torture; rape – Article 7 of the Rome
Statute
 Easier to prosecute by the ICC because of broad definition and issues of proof
War crimes
 Actions carried out during time of war that violate international law
 Geneva Conventions- set standards in int. law for humane treatment of victims of war i.e. civilians, sick and wounded, prisoners of war, etc.
 Article 8 of Rome Statute- provides activities that constitute war: torture or inhumane treatment; wilful killing or causing suffering/injury;
militarily unjustified destruction of property; directing attacks at civilian populations; directing attacks at humanitarian personnel or
equipment
CASE: Prosecution of Sudanese President Omar Al-Bashir
 2008, ICC filed charges against Sudanese president over on-going atrocities
 Received attention through campaigns, human rights groups, political leaders and celebrities
 Charges included 10 of war crimes, 3 genocide, 5 crimes against humanity and 2 murder- destruction of three tribal groups due to ethnicity
 ICC issued warrant for arrest in 2009 for war crimes: directing attacks at civilian population, crimes against humanity: murder,
extermination, forcible transfer, rape and torture
Transnational Crimes
 This involves the breaking of laws in more than one nation however covered by extradition
 Difficulties in trans-border detection and enforcement of criminal laws- crimes underpinned by international cooperation between countries
affected
 Include human trafficking, international fraud/white collar crime, international terrorism, etc.
 Prosecuted under law of one or another country’s domestic jurisdiction
 E.g. The Wonderland Club prosecution – simultaneous raids in different nations around the world occurred to arrest members of a club who
exchanged child pornography over the Internet.
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 Include hostage taking, terrorism, drug trade, etc.
 Pakistan terrorists hijacked Indian Airlines in 1999 despite the Convention on High Seas 1958
Dealing with international crime
Domestic measures
Crimes against the international community
 Ratification of Rome Statue on 9th December 1998- prior to development agreed to criminalise recognised crimes by int. community
 E.g. War Crimes Act 1945 (Cth)- outlawed recognised war crimes listed in Geneva Conv. Act 1957 (Cth)
 Ensures Australia’s domestic laws would comply with statue
 Australia also has primary jurisdiction to investigate and prosecute crimes in Australian territory or involving Aus citizens
 Any crime outlawed in Rome Statute is criminalised in Aus
 Play role of state party to ICC- participates in discussions among state parties and in admin of court
Transnational crime
Australian Federal Police (AFP)-
 Commonwealth police force established to enforce Commonwealth criminal law and to protect Australia’s interests from crime in Aus and
overseas
 Engaged in various international activities worldwide including posts in over 25 countries, monitoring and peacekeeping, training for int. law
enforcement agencies to prevent TC
 Include child protection, terrorism operations, preventing human trafficking, etc.
 Established Jakarta Centre for Law Enforcement- aims to enhance regional cooperation to deal with TC
 Develops relations with other regional bodies i.e. International Law Enforcement Academy in Bangkok
Australian Crime Commission (ACC)
 National statutory body under Australian Crime Commission Act 2002 (Cth)- commission focuses on gathering intelligence on organised
crime
 Investigates national concern in coordination with international law enforcement agencies
 Investigates areas such as money laundering and tax fraud, identity crime, human trafficking, etc.
 News Corp Australia: murder victim Jamie Gao was called for secret hearing for evidence of the corrupt former detectives Roger Rogerson
and Glen McNamara
International measures – Rome Statute 1998 has legal force under international law
Courts and Tribunals
 Crimes were dealt with by domestic courts or ad hoc tribunals prior to the establishment of the ICC
 ICJ: judicial organ concerned with trying nation states that violate international law
 Tribunal for Former Yugoslavia: disbanded once conflict was resolved
International Criminal Court (ICC)
 Independent and permanent judicial organ of the UN established by the Rome Statute in 2002 to prosecute and try most serious international
crimes
 Opened investigation in Congo and made efforts to provide support to nation state through establishment of witness protection programs
 Only prosecute if courts cannot or are unwilling to try individuals
 Exercise where: accused is national of member state of treaty, alleged crime occurred in member state and the situation is referred to
the ICC by the UNSC
 Life imprisonment served in state prison designated by court
International Criminal Police Organization (INTERPOL)- created in 1923 to improve transnational cooperation between police around
the world
 MAIN AREAS: drugs and criminal organisations, terrorism and human trafficking
 Provide advice to national law enforcement agencies on transnational crimes
 Movement for global police force by INTERPOL to increase track ability of criminals around the world by sharing resources
 Wonderland Club – int. joined forces to raid homes of members around the world AUS, TGB, US
o Mutual assistance request by one government to another for assistance with regard to criminal investigations and prosecutions – AUS
requested GB to help with raids
o Done so at the request of a law enforcement agency like the Federal Police
EFFECTIVENESS
 International crime presents particular problems. Ease of travel between nation states and technological developments has made it
increasingly difficult for such crimes to be investigated
 Enforcement is an issue due to state sovereignty, which limits the jurisdiction of a domestic country’s laws and legal system
 USA ignored ICJ ruling when found guilty of unlawfully invading airspace of Nicaragua
Transnational crime
 Some states may lack skills, training and resources to combat crimes such as paedophilia rings, trafficking and smuggling
 Main areas of effort against transnational crime include:
 Effectiveness of coordination between agencies
 Level of compliance among weaker and poorer states
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 Cooperation and sharing of skills, resources, funding and intelligence
 Unlikely to subside as world changes such as drug trade however combated with UN Convention on Narcotic Drugs 1961 (heroin illegal,
cooperate to combat illegal trafficking)

Crimes against international community

 ICC powerful- sends message to powerful leaders that sovereignty may not be their answer to escaping prosecution/criminal charges; justice
to int. victims
 Coerce states into abiding by international law
 Promising tool in combating international crime- potential to make difference in preventing atrocities
 Deterrent against rogue leaders and attempt to bring justice to victims of atrocities
 Only deal with atrocity after it has been committed
 Court of last resort and hears cases based on consensus
 Rare intervention by UNSC- no international force or police that can capture such offenders
 E.g. President Al-Bashir charges laid 5 years after began
 Rwanda atrocities discovered 15 years later- 500,000 deaths in 100 days
 Cost of investigations and prosecutions limits the power and effectiveness- permanent court is a slow step towards improvement
 Limited in the sense of lacking most influential countries including US, China and India
 War crime tribunals: are rare due to lack of funding and have rarely led to convictions or trials